My name's Brandon. I'm 21 years old, and I've been playing games for as long as I can remember; my first game was probably one of the Mario games.

My favorite games are RPGs (preferably Japanese-style), platformers, and action-adventure games. I'll try pretty much anything out, but I stay away from sports games. My favorite title is Persona 4. I also enjoy horror games; my favorite of those, though it wasn't all that scary, is Silent Hill: Shattered Memories.

Playing Final Fantasy XIII-2--and mind you, I'm still only at the beginning--I've noticed two spots in the game that are suspiciously empty:

In the menu, there is an submenu labeled "Outfits".

In the Historia Crux--the game's map system, using time travel as its main element--there is a location called the Coliseum.

The only available options in the Outfits screen are the default costumes for Serah and Noel, and I assumed I would find more as the game progressed.

When I saw that the Coliseum was available, I was interested; normally in games, areas like that--in which one can fight varieties of monsters, generally for prizes--are unlocked toward the middle of the game. Strangely enough, the only option I had in the Coliseum when I talked to the shadowy, freaky being called the "Arbiter of Time" was downloadable content (DLC) I won in a contest, a recurring boss in the series called Omega.

After about twenty seconds of shouting "NO, STOP THAT NO NO NO SERAH HEAL NOEL NOW" at my screen--along with multiple profanities--I saw my first "Game Over" screen while playing Final Fantasy XIII-2. I went online to go find out what level was recommended to take on Omega, and what other opponents may show up in the Coliseum.

What I found, though, was quite disappointing: players who didn't get the Omega DLC weren't even allowed into the area. Others were told that they would never be allowed into the Coliseum unless they purchased DLC, so I did some more snooping, this time on the Outfits menu... and again, the only available costume changes would be in DLC.

Now, I don't have a problem with DLC. When done right, it can extend a game's lifespan in great ways; free content--such as the first extra campaign for Left 4 Dead--is a great way to create support for software, even if Microsoft seems reluctant to allow it, and game expansions can breathe new life into older titles.

However, cutting out content that in older times would have been unlockable by completing in-game challenges is, to me, unacceptable. Had Square put in unlockable Coliseum fights and extra costumes then supplemented them with newer downloadable options, I would be completely content.But to put a menu into the game's interface, to include an entire location to just tell players "NOPE GO BUY THIS LOL"... that's just not cool, Square.

Final Fantasy XIII-2, thus far, has a few flaws but is pretty solid as a whole.

Since the announcement of region locking on the unit, there has been controversy about the Nintendo 3DS: they threaten to brick any 3DS unit that has been used with unlicensed software or hardware.

As far as I can tell, this is not legal. Please keep in mind, though, that I am not a legal expert; I am simply a college student.

This warning, in case the text is hard to read, states: “Any unauthorized technical modification of the hardware or software, or the use of an unauthorized device, will render your Nintendo 3DS system permanently unplayable and result in removal of unauthorized content.”

Nintendo has had similar warnings for previous consoles, as can be seen here.

In the Wii's case, system updates disabled homebrew, but did not cause modified systems to lose functionality.

This warning applies to any modifications done to the console's firmware, including potential homebrew and the ability to play region-locked games.

Nintendo's statement not only affects those who may modify their console to allow the playing of games from outside of the unit's region, but also unlicensed “hardware”, which could potentially include battery packs and the like. Whether or not Nintendo can tell if one has used an unofficial peripheral, I do not know. However, this would severely affect those who buy third-party battery packs, especially considering the 3DS is currently known to have a rather short battery life.

However, this is not legal: the Nintendo 3DS is a good, not a service. When one purchases a good, it becomes their own; they can do whatever they wish with it. Uniform Commercial Code, the law that governs what constitutes a good or service and what may be done with it, implies that once the contract is fulfilled (in this case, the contract between Nintendo—or even retailers—and consumers to pay $250 for a Nintendo 3DS unit), that good belongs to the consumer; thus, anything could be done to it. The UCC states that the seller can only recall goods if the contract is breached. In the case of Nintendo, if one somehow worked out a plan to pay for the 3DS in installments and could not afford to do so, /then/ they could recall or brick a console. As it is, however, once the 3DS is purchased, anything may be done to it.

Nintendo would be completely allowed to suspend any and all online services from modified consoles, but completely causing a console to cease functionality is illegal. Additionally, copyright law—after the courts declared jailbreaking of iPhones legal—has stated:

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

This, if I am not mistaken, informs citizens of the United States that once a console is hacked, provided nothing illegal is done afterward, the console itself is still valid. Basically, this means that should someone hack their 3DS to obtain region-free functionality to play games they purchased in other regions, that is legal; the system legally cannot be bricked as a result. Sony's recent settling of the lawsuit against Geohot, for hacking the Playstation 3, had no legal consequences that I can discern, and thus would not affect this potential case.

The warning also affects the use of flashcarts as a legal backup to carrying around multiple 3DS and DS cartridges; however, that itself could be considered illegal. Copyright law has stated that copying of copyrighted movies is only legal under certain circumstances:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:(i) Educational uses by college and university professors and by college and university film and media studies students;(ii) Documentary filmmaking;(iii) Noncommercial videos.

If the same law is applied to video games, it becomes clear that the law does not allow consumers to create backups of their own media. While I feel it is a little ridiculous that the law does not allow for consolidation of software into one physical format by the user, Nintendo would be completely within their rights to suspend any services they provide to users of flash cards. However, they would still not be within their rights to cause the entire console to cease functionality.

I will not lie and say that hacking the Nintendo 3DS would not potentially allow piracy: it will. However, the modification of a console and its firmware is not the same as piracy. Opening a system to allow for new applications to be run on it is something completely separate, and protected by law. Nintendo would be within their rights to suspend any services to users who have used their devices for piracy.

In short:
Copyright law states that, provided nothing illegal is done as a result of it, the modification and hacking of a Nintendo 3DS to enable homebrew and region-free functionality is legal. Nintendo cannot legally cause a Nintendo 3DS to cease functioning; the only thing they may do is suspend any online services offered to users of modified consoles.

Recently, there's been a lot of controversy over the hacking of the Playstation 3. George Hotz, a hacker that goes by the name “geohot”, amongst others, distributed the root keys of the Playstation 3, which allows users to enable homebrew applications on their Playstation 3.

Now, I do not pretend to be a legal expert; I'm a simple college student. However, reading through the many articles on the case of Sony Computer Entertainment America v. George Hotz, I see many differing opinions on if Hotz should win the case, or if Sony should get their way.

I would also like to state that I do not own a Playstation 3; therefore, I do not have anything personal at stake.

Before getting into what I can understand from a legal perspective, I would like to state my opinion:

Sony is not within their rights to sue George Hotz. They are, however, legally allowed to release firmware for the Playstation 3 console that would overwrite any hacks and restore it to what they want it to be. These updates would need to be optional for the running of the system; for future games to run, not so much. Provided that users modifying their consoles are not using the modifications for piracy/copyright infringement/other illegal activity, hackers are within their rights to do what they wish with their own purchased goods. Any illegal activities done after the modification of the system should be taken up between the government and the user, not Sony.

Sony is, however, totally within their rights to ban users from online interactions if they have modified their console in any way. That is a service granted by Sony, provided that users are running official firmware and software on a non-modified Sony console. I think it's a bit extreme to ban them, provided modified users are not using their modifications to affect online interactions, but Sony is legally allowed to do whatever they want in their provided online interactions.

Picture from Wikipedia.

Now, to get into why I think this.

The US Copyright office has established that purchased electronics may be modified to use unofficial firmwares. George Hotz, before this Playstation controversy, hacked the Apple iPhone. Apple attempted to block this, claiming it infringed upon copyright laws. However, the government established through this lawsuit that modifying a console—without the purpose of infringing on intellectual property—is legal.

Particularly relevant is this portion of the text that can be found here:

(2) Computer programs that enable wireless telephone handsets to execute software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications, when they have been lawfully obtained, with computer programs on the telephone handset.

(4) Video games accessible on personal computers and protected by technological protection measures that control access to lawfully obtained works, when circumvention is accomplished solely for the purpose of good faith testing for, investigating, or correcting security flaws or vulnerabilities, if:(i) The information derived from the security testing is used primarily to promote the security of the owner or operator of a computer, computer system, or computer network; and(ii) The information derived from the security testing is used or maintained in a manner that does not facilitate copyright infringement or a violation of applicable law.

I have copied the relevant portions of the text.

Before I continue, I would like to restate that I am in no way a legal expert.

However, the above text to me suggests that we are within our rights to modify our own devices to run legally-obtained software that may not be otherwise allowed, as well as to use any information we have found through hacking the system, provided the information is not used to infringe on copyrights.

I will not lie and say that hacking the Playstation 3 would not potentially allow piracy: it will. However, the modification of a console and its firmware is not the same as piracy. Opening a system to allow for new applications to be run on it is something completely separate, and protected by law. Sony would be within their rights to suspend any services to users who have used their devices for piracy, but would not be legally allowed to force an update that would cause the consoles to become inoperable. The only thing they would be allowed to do would be to issue an update that would, if applied, cause the modifications to be inoperable.

Now, it seems to me that Sony could potentially use the above laws to argue that the Playstation 3 does not fall within these bounds because it is neither a “wireless telephone handset” nor a “video game accessible on personal computers”. Should they exploit those semantics, they stand a chance at winning their suit; however, I do not believe that would follow the intention of the law.

George Hotz did not show off piracy as a capability of his hacking of the Playstation 3. He demonstrated his modification's ability to run OtherOS as well as homebrew applications; neither of these demonstrate any infringement of copyrights. He also specifically stated that he does not condone piracy.
It would be ignorant to say that some users may utilize these modifications to enable piracy. However, the modifications themselves are not piracy, and thus should be covered under fair use.